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HomeMy WebLinkAboutAGMT - Kosmont & Associates (Hotel Project Feasibility Summary Eval) • • PROFESSIONAL SERVICES AGREEMENT Between ` = °OF SEA( B �� \��ppPORgrF� q� ' ++ fir/ % • , -A � O i Y� • `� City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 Kosmont & Associates, Inc. dba "Kosmont Companies" 865 S. Figueroa Street, Suite 3500 Los Angeles CA 90017 (213) 417 -3300 This Professional Service Agreement ( "the Agreement ") is made as of June 1, 2011 (the "Effective Date "), by and between Kosmont & Associates, Inc. dba "Kosmont Companies" ( "Consultant ") and the City of Seal Beach ( "City"), a California charter city, (collectively, "the Parties "). 1 of 9 S7296- 0001 \1236808v1.doc • • RECITALS A. City desires certain professional services. B. Consultant represents that it is qualified and able to provide City with such services. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows. AGREEMENT 1.0 Scope of Services 1.1. Consultant shall provide those services ( "Services ") set forth in the attached Exhibit A, which is hereby incorporated by this reference. To the extent that there is any conflict between Exhibit A and this Agreement, this Agreement shall control. 1.2. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City. 1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local law. 1.4. Consultant will not be compensated for any work performed not specified in the Scope of Services unless the City authorizes such work in advance and in writing. The City Manager may authorize payment for such work up to a cumulative maximum of $19,000. Payment for additional work in excess of $19,000 requires prior City Council authorization. 2.0 Term This term of this Agreement shall commence as of the Effective Date and shall continue for a term of four (4) months unless previously terminated as provided by this Agreement. 3.0 Consultant's Compensation City will pay Consultant in accordance with the hourly rates shown on the fee schedule set forth in Exhibit B for Services but in no event will the City pay more than $19,000. Any additional work authorized by the City pursuant to Section 1.4 will be compensated in accordance with the fee schedule set forth in Exhibit B. 2 of 9 S7296 -0001 \1236808v1.doc III • 4.0 Method of Payment 4.1. Consultant shall submit to City monthly invoices for all services rendered pursuant to this Agreement. Such invoices shall be submitted within 15 days of the end of the month during which the services were rendered and shall describe in detail the services rendered during the period, the days worked, number of hours worked, the hourly rates charged, and the services performed for each day in the period. City will pay Consultant within 30 days of receiving Consultant's invoice. City will not withhold any applicable federal or state payroll and other required taxes, or other authorized deductions from payments made to Consultant. 4.2. Upon 24 -hour notice from City, Consultant shall allow City or City's agents or representatives to inspect at Consultant's offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City's rights under this Section 4.2 shall survive for two years following the termination of this Agreement. 5.0 Termination 5.1. This Agreement may be terminated by City, without cause, or by Consultant based on reasonable cause, upon giving the other party written notice thereof not Tess than 30 days prior to the date of termination. 5.2. This Agreement may be terminated by City upon 10 days' notice to Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 6.0 Party Representatives 6.1. The City Manager is the City's representative for purposes of this Agreement. 6.2. Larry J. Kosmont is the Consultant's primary representative for purposes of this Agreement. 7.0 Notices 7.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the following addresses: 3 of 9 S7296 -0001 \1236808v1.doc • • To City: City of Seal Beach 211 -8th Street Seal Beach, California 90740 Attn: City Manager To Consultant: Kosmont Companies 865 S. Figueroa Street Suite 3500 Los Angeles, CA 90017 Attn: Larry J. Kosmont 7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 8.0 Independent Contractor 8.1. Consultant is an independent contractor and not an employee of the City. All services provided pursuant to this Agreement shall be performed by Consultant or under its supervision. Consultant will determine the means, methods, and details of performing the services. Any additional personnel performing services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 8.2. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from Consultant's personnel practices. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section. 9.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of the City. Consultant is fully responsible to City for the performance of any and all subcontractors. 4 of 9 S7296 -0001 \1236808v1.doc • • 10.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any purported assignment without such consent shall be void and without effect. 11.0 Insurance 11.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements shall be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 11.2. Consultant shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and, if required by the City, (3) Professional Liability. Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; and (3) Professional Liability: $1,000,000 per claim /aggregate. 11.3. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to state: (1) coverage shall not be suspended, voided, reduced or canceled except after 30 days prior written notice by certified mail, return receipt requested, has been given to the City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain 5 of 9 S7296 -0001 \1236808v1.doc • • of coverage excess of the Consultant's scheduled underlying coverage and that any insurance or self- insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible. 11.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers. 11.5. Any deductibles or self - insured retentions shall be declared to and approved by the City. Consultant guarantees that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 12.0 Indemnification, Hold Harmless, and Duty to Defend Consultant shall defend, indemnify, and hold the City, its officials, officers, employees, volunteers and agents serving as independent contractors in the role of city officials (collectively "Indemnitees ") free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, Toss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any acts or omissions of Consultant, its employees, or its agents in connection with the performance of this Agreement, including without limitation the payment of all consequential damages and attorneys' fees and other related costs and expenses, except for such loss or damage arising from the sole negligence or willful misconduct of the City. With respect to any and all such aforesaid suits, actions, or other legal proceedings of every kind that may be brought or instituted against Indemnitees, Consultant shall defend Indemnitees, at Consultant's own cost, expense, and risk, and shall pay and satisfy any judgment, award, or decree that may be rendered against Indemnitees. Consultant shall reimburse City and its directors, officials, officers, employees, agents and /or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its directors, 6 of 9 S7296 -0001 \1236808v1.doc • • officials, officers, employees, agents or volunteers. All duties of Consultant under this Section shall survive termination of this Agreement for 3 years. Notwithstanding the foregoing, Consultant has no duty to defend, indemnify or hold Indemnitees harmless from claims, demands, causes of action, costs, expenses, liability, loss, damage or injury (other than bodily injury or physical damage) for any claims brought by or against any developer, prospective developer, applicant, prospective applicant or any of their respective affiliates related to the hotel project feasibility study, assignment that Consultant will perform. 13.0 Equal Opportunity Consultant affirmatively represents that it is an equal opportunity employer. Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such non- discrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 14.0 Labor Certification By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers' Compensation or to undertake self - insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 15.0 Entire Agreement This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties. 16.0 Severability The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 17.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 7 of 9 S7296 -0001 \1236808v1.doc • • 18.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 19.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 20.0 Prohibited Interests; Conflict of Interest 20.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services. Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code § §1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 20.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift. 20.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, non - contractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws as described in this subsection. 8 of 9 S7296-0001 \1236808v1.doc • • 21.0 Attorneys' Fees If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorneys' fees and other costs incurred in connection therewith. 22.0 Exhibits All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. 23.0 Corporate Authority The person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of said Party and that by his or her execution, the Consultant is formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL BEACH CONSULTANT 1 By: w I %Litt, KOSMONT & ASSOCIATES, INC., Ji . Ingram, C anager dba "Kosmont Companie " (A ng) Attest: By: i Name: Larry J. Ko By: JD . L' da Devine'City C er Its: President and CEO 2 Approved as to Form: By: Name: Susan Perry By: Quinn Barrow, City Attorney Its: Corporate Secretary 9 of 9 87296-000111236808v1 . doc 1 .. R9 � j IA ID EXHIB • A • U C * t K Y • _ i Est. 1986 + , - .......( Real Estate * Entitlements * Development * Finance /Economics May 16, 2011 Mark Persico Director of Development Services City of Seal Beach 211 8 Street Seal Beach, CA 90740 Re: Proposal for Services for Summary Evaluation of Hotel Project Feasibility Dear Mr. Persico: Kosmont & Associates, Inc. doing business as Kosmont Companies ("Consultant" or "Kosmont ") is pleased to present this proposal for real estate advisory services to the City of Seal Beach ( "Client" or "City ") in connection with the proposed hotel project ( "Project ") located at 1 Street and Marina Drive in Seal Beach, California ( "Site "). I. AND OBJECTIVE The Project Site is a 48 lot subdivision of approximately 10.6 acres, bound by Marina Drive to the north, the San Gabriel River Channel and Alamitos Bay Marina to the west, public beach access and Pacific Ocean to the south, and 1st Street to the east. Land use for the Site is governed the City of Seal Beach pursuant to an adopted Specific Plan, which currently designates Visitor - Serving Land Uses for the northerly 30 percent (approx.) of the parcel and Publicly -Owned Open -Space Land Uses for the remaining 70 percent (approx.). Bay Cities Partners, LLC ( "Developer "), the current owner of the Site, has petitioned the City for a change in zoning as currently set forth in the Specific Plan in order to develop the Project as a residential only development. In support of this petition, Developer has presented to the City a site, market and financial viability study for the hotel project as conducted by PKF Consulting, Inc. ( "PKF "), an external consulting firm. The PKF Hotel Study concludes that the construction of the hotel as currently set forth in the Specific Plan would not be feasible. Client is seeking Consultant's assistance to review the PKF Hotel Study and provide a third -party summary evaluation of the hotel project feasibility. Consultant has not been asked by Client to provide a feasibility assessment of the residential only alternative. II. SCOPE OF SERVICES Task 1: Review PKF Hotel Study Consultant will review the PKF hotel site, market and financial viability study prepared in 2009 in order to understand key assumptions utilized and results obtained. 865 South Figueroa Street 35 Floor Los Angeles CA 90017 ph 213.417.3300 ix 213.417.3311 www.kosmont.com • • City of Seal Beach Proposal for Services May 16, 2011 Page 2 of 7 Task 2: Independent Market Analysis and Due Diligence Consultant will perform an independent market analysis for a ground -up hotel development, inclusive of relevant economic, demographic, design, and development and construction considerations. Consultant's due diligence may incorporate the review of other relevant ground -up developments in order to evaluate the subject Project's viability while also factoring into account unique characteristics of the subject Property. Consultant will utilize existing financing assumptions to develop a financial proforma for the purpose of prospecting potential financing sources to determine the likely availability of viable financing options. Market analysis and due diligence may include other tasks as deemed appropriate by Consultant. Task 3: Summary Memorandum / Project Meetings Consultant will prepare and provide Client with a Memorandum summarizing its findings from Tasks 1 and 2. The Memorandum will characterize Consultant's opinion of the hotel project's viability with supporting arguments. Consultant will participate in a maximum of two (2) meetings with Client, one of which may be telephonic, and if requested by Client, one (1) meeting with Developer and City. It is anticipated that the meetings with Client would occur at assignment initiation. If requested, Consultant will be available for one (1) presentation to the City Council. III. SCHEDULE AND REQUIRED DATA Consultant is prepared to commence work as soon as authorized and upon receipt of a professional services deposit. To the extent possible, Client will provide Consultant with existing project data including project site plan, City Specific Plan, relevant staff reports and analysis, and relevant Developer submittals and correspondence. Concurrent with authorization to proceed, City will advise Developer and obtain, as necessary, consent for Consultant to contact Developer and /or Developer's consultant(s). Meeting(s) with Developer and /or Developer consultant(s) is /are not required for the assignment. It should be noted that PKF is located at the same address as Consultant in downtown Los Angeles, which is merely coincidental, as there is no affiliation between Consultant and PKF. It is anticipated that the Draft Memorandum will be completed in 5 weeks from receipt of project data, with Final Memorandum completed within 7 days of last comments received by Client. IV. COMPENSATION The compensation for Tasks 1 through 3 will be invoiced on a time and materials basis not to exceed $19,000. Further increases, if necessary, will require approval by Client in advance. Additional meetings pursuant to Task 3 can be scheduled at Client's request and shall be invoiced on a time and materials basis pursuant to the attached fee schedule (Exhibit B). KOSMONT COMPANIES 865 South Figueroa Street 35 Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com • City of Seal Beach Proposal for Services May 16, 2011 Page 3 of 7 Services for Tasks 1 through 3 will be invoiced monthly at Consultant's standard billing rates, as shown on Exhibit B, plus reimbursement for out -of- pocket expenses such as travel and mileage, professional printing, conference calls, and delivery charges for messenger and overnight packages at actual cost. Consultant will also include in each invoice an administrative services fee to cover in -house copy, fax, telephone and postage costs equal to four percent (4.0 %) of Consultant's monthly professional service fees incurred. Any unpaid invoices after 30 days shall accrue interest at the rate of 10% per annum. To begin this assignment, Consultant requires a professional services deposit of $9,500. This deposit will be credited against the final invoice. Consultant is prepared to commence work immediately upon receipt of authorization and the retainer. V. OTHER PROVISIONS A. Termination. Client or Consultant shall have the right to terminate this Agreement at any time upon written notification to the other party. Payment for fees accrued through the date of termination shall be remitted in full. B. Arbitration. Any controversy or claim arising out of or in relation to this Agreement, or the making, performance, interpretation or breach thereof, shall be settled by arbitration at JAMS in Los Angeles, California. Each of the parties to such arbitration proceeding shall be entitled to take up to five depositions with document requests. The provisions of Section 1283.05 (except subdivision (e) thereof) of the California Code of Civil Procedure are incorporated by reference herein, except to the extent they conflict with this Agreement, in which case this Agreement is controlling. If the matter is heard by only one arbitrator, such arbitrator shall be a member of the State Bar of California or a retired judge. If the matter is heard by an arbitration panel, at least one member of such panel shall be a member of the State Bar of California or a retired judge. The arbitrator or arbitrators shall decide all questions of law, and all mixed questions of law and fact, in accordance with the substantive law of the State of California to the end that all rights and defenses which either party may have asserted in a court of competent jurisdiction shall be fully available to such party in the arbitration proceeding • contemplated hereby. The arbitrator and arbitrators shall set forth and deliver their findings of fact and conclusions of law with the delivery of the arbitration award. Judgment upon the award rendered shall be final and non - appealable and may be entered in any court having jurisdiction. C. Attorneys' Fees. In the event of any legal action, arbitration, or proceeding arising out of an alleged breach of this Agreement, the party prevailing in such legal action, arbitration, or proceeding shall be entitled to recover reasonable attorneys' fees, expenses and costs, as well as all actual attorneys' fees, expenses and cost incurred in enforcing any judgment entered. D. Authority. Each of the parties executing this Agreement warrants that persons duly authorized to bind each such party to its terms execute this Agreement. KOSMONT COMPANIES 865 South Figueroa Street 35"' Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com • • City of Seal Beach Proposal for Services May 16, 2011 Page 4 of 7 E. Further Actions. The parties agree to execute such additional documents and take such further actions as may be necessary to carry out the provisions and intent of this Agreement. F. Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party without the prior written consent of the other party. G. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and there respective successors and assigns. H. Entire Agreement; Amendments and Waivers. This Agreement contains the entire agreement between the parties relating to the transactions contemplated hereby and any and all prior discussions, negotiations, commitments and understanding, whether written or oral, related hereto are superseded hereby. No addition or modification of any term or provision of this Agreement shall be effective unless set forth in writing signed by both parties. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver of such provisions unless otherwise expressly provided. Each party to this Agreement has participated in its drafting and, therefore, ambiguities in this Agreement will not be construed against any party to this Agreement. I. Severability. If any term or provision of this Agreement shall be deemed invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each remaining term and provision of this Agreement shall be valid and in force to the fullest extent permitted by law. J. Notices. All notices, requests, demands and other communications which may be required under this Agreement shall be in writing and shall be deemed to have been received when transmitted; if personally delivered, if transmitted by telecopier, electronic or digital transmission method, upon transmission; if sent by next day delivery to a domestic address by a recognized overnight delivery service (e.g., Federal Express), the day after it is sent; and if sent by certified or registered mail, return receipt requested, upon receipt. In each case, notice shall be sent to the principal place of business of the respective party. Either party may change its address by giving written notice thereof to the other in accordance with the provisions of this paragraph. K. Titles and Captions. Titles and captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision herein. L. Governing Law. The statutory, administrative and judicial law of the State of California (without reference to choice of law provisions of California law) shall govern the execution and performance of this Agreement. KOSMONT COMPANIES 865 South Figueroa Street 35 Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com • • City of Seal Beach Proposal for Services May 16, 2011 Page 5 of 7 M. Confidentiality. Each of the parties agrees not to disclose this Agreement or any information concerning this Agreement to any persons or entities, other than to their attorneys and accountants, or as otherwise may be required by law. N. Counterparts. This Agreement may be executed in one or more counterparts, each of which constitutes an original, and all of which together constitute one and the same instrument. The signature of any person on a telecopy of this Agreement, or any notice, action or consent taken pursuant to this Agreement shall have the same full force and effect as such person's original signature. 0. Disclaimer. Consultant's financial analysis activities and work product, which includes but is not limited to pro forma analysis and tax projections, are projections only. Actual results may differ materially from those expressed in the analysis performed by Consultant due to the integrity of data received, market conditions, economic events and conditions, and a variety of factors that could materially affect the data and conclusions. Client's reliance on Consultant's analysis must consider the foregoing. Consultant services outlined and described herein are advisory services only. Any decisions or actions taken or not taken by Client and affiliates, are deemed to be based on Client's understanding and by execution of this Agreement, acknowledgement that Consultant's services are advisory only and as such, cannot be relied on as to the results, performance and conclusions of any investment or project that Client may or may not undertake as related to the services provided including any verbal or written communications by and between the Client and Consultant Client acknowledges that Consultant's use of work product is limited to the purposes contemplated within this Agreement. Consultant makes no representation of the work product's application to, or suitability for use in, circumstances not contemplated by the scope of work under this Agreement. P. Limitation of Damages. In the event Consultant is found liable for any violation of duty, whether in tort or in contract, damages shall be limited to the amount Consultant has received from Client. Q. Expiration of Proposal for Services. If this Agreement is not fully executed by the parties within thirty (30) days from the date of this letter, this proposal shall expire. R. Not an agreement for Legal Services or Legal Advice. This Agreement does not constitute an agreement for the performance of legal services or the provision of legal advice, or legal opinion. Client should seek independent legal counsel on matters for which Client is seeking legal advice. [ signature page follows ] KOSMONT COMPANIES 865 South Figueroa Street 35 Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com City of Seal Beach Proposal for Services May 16, 2011 Page 6 of 7 VI. ACCEPTANCE AND AUTHORIZATION If this Agreement is acceptable to Client, please execute two copies of the Agreement and return both originals to Kosmont Companies along with a $9,500 services deposit to be credited toward final billing. Upon receipt of both signed contracts, we will return one fully executed original for your files. Kosmont will commence work upon receipt of executed Agreement and services deposit. Read, understood, and agreed to this Day of 2011 City of Seal Beach Kosmont & Associates, Inc. doing busines t Co panies" By: By: (Signature) (Signet Name: Name: Larry J. Kosmont, CRE (Print Name) Its: Its: President & CEO (Title) KOSMONT COMPANIES 865 South Figueroa Street 35th Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com • • City of Seal Beach Proposal for Services May 16, 2011 Page 7 of 7 EXHIBIT B Kosmont Companies 2011 Public Agency Fee Schedule Professional Services President & CEO $275.00 /hour Partner /Senior Vice President/Senior Consultant $225.00 /hour Vice President/Associate $185.00 /hour Project Analyst $150.00 /hour GIS Mapping /Graphics Service /Research $ 95.00 /hour Clerical Support $ 60.00 /hour • Reimbursables An administrative fee for in -house copy, fax, phone and postage costs will be computed at four percent (4.0 %) of monthly Kosmont Companies professional service fees incurred. Reimbursables shall be charged at cost for professional printing, and delivery charges for messenger and overnight packages. • Charges for Court/Deposition /Expert Witness - Related Appearances Court- related (non - preparation) activities, such as court appearances, depositions, and expert witness activities, will be charged at a court rate of 1.5 times scheduled rates, with a 4 -hour minimum. Rates shall remain in effect until December 31, 2011 KOSMONT COMPANIES 865 South Figueroa Street 35 Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com • EXHIBIT C • Rd r ( ( f 4 __ * ZCo QC omp es Est 1986 • _ J H Real Estate * Entitlements * Development * Finance /Economics May 16, 2011 Kosmont Sample Hotel Projects 1. Scotts Valley Hotel (Active Project) Kosmont is currently working with the City to evaluate the development of a proposed hotel, contemplated as an approximate 129 -room Holiday Inn Express. Kosmont is reviewing market demand and site analyses, financial proformas, and capital stack and equity source information to determine the magnitude of the funding gap between estimated total required funding and previously secured (SBA) funding. Kosmont has also been retained to assess viability of a public - private transaction structure and to identify potential public sector and private market sources of funds that may be applied to support the identified Project financial gap. Pursuant to the results of previous tasks, Kosmont has also been retained to assist the City in transaction negotiations with the Developer and to pursue funding sources for the proposed Project. 2. Redondo Beach — Freeway Hotel Site (Active Project) Kosmont is working with the City and Developer to identify funding sources and negotiate a lease- leaseback structure to fund the development of two (2) hotels (Hilton Garden Inn and Marriott Courtyard) within the City. Kosmont is exploring alternative financing structures for the 392 -room project. 3. HEI — "W" Hotel (Active Project) Kosmont was retained by HEI Hotels to assist in the identification, evaluation, and potential procurement of public subsidies and /or other financing assistance related to the development of a mixed -use hotel, condominium, nightclub, and restaurant located in Hollywood, California. Kosmont has identified a source of equity for the Hotel utilizing an EB -5 investment program structure for certain sections of the Hotel facilities, for which documentation is in process. 4. City of Redondo Beach — Shade Hotel Project and other Marina /Harbor Assets (Active Project) Kosmont is currently retained by the Harbor Division of the City of Redondo Beach to develop and execute an Asset Management Plan, which included a series of policies for the management and redevelopment of the leaseholds on the 150 acres that comprise the Redondo Beach Pier and surrounding waterfront district. Kosmont recently completed negotiations for the Shade Hotel (Zislis Group), which is a proposed luxury boutique hospitality facility on land owned by the City pursuant to a ground lease. Kosmont is currently retained to establish the highest and best use of the five properties under City control which involve the negotiation of multiple leases, financial analysis, coordination of the RFQ processes for undeveloped properties and general transactional support as pertaining to hotel, retail, restaurant and visitor serving amenities. 865 South Figueroa Street 35"' Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com City of Seal Beach Sample Hotel Projects May 16, 2011 Page 2 of 5 5. Hotel for "Confidential" Casino Client in California (Active Project) Kosmont is retained as the Casino's project and financial advisor for an expansion program that will add a 100 to 150 -room hotel component adjacent to the existing Casino facility. With Kosmont's assistance, the Casino is evaluating the expansion program, which included renegotiation of the existing ground leases between the Casino, the City, and the City Redevelopment Agency. Kosmont has now successfully concluded the lease negotiations which allows for the hotel expansion. Kosmont is responsible for providing general project management services, including the evaluation of financing structures, availability of equity /debt and construction financing, potential development costs, and entitlement and environmental approvals, and selection of hotel operator. 6. City of Norco — Norco Hospitality Report (Active Project) Kosmont is retained as the City's real estate and financial advisor on a variety of economic development projects. Kosmont recently completed a hospitality demand analysis for the City of Norco to assist the City in its process of establishing a hospitality overlay zone within the City. The intention of creating the hospitality zone within the City is to designate an area within the City where hotels, restaurants, and other tourist serving amenities might be located. In order to properly market and attract these tourist serving amenities to the hospitality zone, Kosmont assisted the City in evaluating the potential demand for such amenities. Additionally, Kosmont assisted the City in estimating the potential future retail demand should certain tourist attracting amenities be developed within the City. 7. Kilroy — SDCC Analysis (Active Project) Kosmont is retained by Kilroy Realty to perform a net fiscal and economic impact analysis for an approximately 24 -acre mixed -use development in the City of San Diego. Kilroy's Project is expected to be comprised of retail, restaurant, residential (both for -sale and rental), hotel and a health club. The objective was to estimate the economic and fiscal impacts of the Project to the City of San Diego and the surrounding San Diego County, including estimates of sales tax, business license tax, hotel tax, and property tax revenues that will be generated by the project. Project- generated fiscal expenditures (police, fire, government) were also estimated and subtracted from expected Project - generated fiscal revenues to arrive at a "net" impact for the City of San Diego. 8. Selma — Tutelian Kosmont was retained by Tutelian & Company to conduct a fiscal analysis for a proposed 992,000 square foot commercial retail power center with hotel building located on 94 acres of land at the northeast corner of Dewolf Avenue and Floral Avenue in the City of Selma. Kosmont's objective was to estimate the fiscal impacts of the project to the City of Selma resulting from property tax, sales tax, business license tax and transient occupancy tax. KOSMONT COMPANIES 865 South Figueroa Street 35 Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com • • City of Seal Beach Sample Hotel Projects May 16, 2011 Page 3 of 5 9. Sir Francis Drake Holdings, L.P. — Fiscal Impact and Economic Benefit Analysis for the Proposed Glen at Valley Glen and Plaza at the Glen Project Sir Francis Drake Holdings, LP retained Kosmont to perform fiscal and economic impacts and permanent jobs creation analysis, in addition to economic advisory services, in connection with the proposed two -phase mixed -use project titled "The Glen" at Valley Glen and Plaza in Los Angeles, California. The project includes over 1.1 million square feet of commercial and retail, a 230 -room hotel, over 325,000 square feet of residential space, and an integrated transit plaza connecting to the City's Orange Line. The objective was to estimate the economic and fiscal impacts of the project to the City of Los Angeles and surrounding Los Angeles County, including the estimates of sales tax, business license tax, hotel tax, utility user tax, and property tax revenues that will be generated by the project. The analyses and reports also include local economic fiscal benefit analysis, the estimation of permanent on -site jobs, and the preparation of a summary fiscal impact report. 10. City of Fresno — Hotel Virginia The Hotel Virginia ( "Hotel ") is a historic building at the northern corner of Kern Street and Van Ness Avenue in the City of Fresno. Kosmont Companies was retained to assist the City to evaluate of whether or not to purchase the Hotel and redevelop it into one of several potential uses. Possible alternative uses include retail, residential or a mixed -use product. Kosmont assisted the City through a market analysis, design review and financial feasibility analysis. 11. City of Fresno — Fresno Sports Town (River) Kosmont was retained as the City's real estate and financial advisor on multiple properties throughout the City, including a mixed -use project with a river/water amenity plus parking, retail, residential and a variety of public amenities. Kosmont has evaluated alternative strategies for the City including a review of similar river /water programs that have been executed in other cities nationwide. In addition to the river /water project, Kosmont has also completed various market studies and economic development strategies for the City. Kosmont has also worked with City staff and City Council to review and evaluate specific projects including a mixed -use downtown rehabilitation project, comprised of converting a historical hotel into a residential and retail project. 12. Fresno — Hotel Feasibility Analysis Kosmont Partners (KP), in association with C. H. Johnson Consulting, Inc. (Johnson Consulting) provided consulting services related to the development of a full- service, convention hotel in Fresno. The City desired a study to determine whether there is demand for additional hotel offerings in the City. Kosmont conducted market analysis, needs assessment, feasibility and economic impact analysis for a convention center hotel in the City. 13. ESA — Extended Stay Hotels Client planned to open additional Extended Stay America hotels in California and other Western states and retained Kosmont to provide assistance in negotiating with municipalities for tax incentives, fee reductions or waivers, subsidies, grants, credits toward developer obligations, and /or other mechanisms that would result in cost savings KOSMONT COMPANIES 865 South Figueroa Street 35 Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com City of Seal Beach Sample Hotel Projects May 16, 2011 Page 4 of 5 to Client in connection with the development of these hotels. Kosmont also prepared fiscal benefits analysis in anticipation of negotiations with selected municipalities for economic incentives related to ESA's development of new hotel sites. 14. Monterey — Cannery Row Hotel Kosmont evaluated and negotiated RDA / City subsidy for 200 -room resort hotel on Cannery Row. 15. Koll Company — Catalina Development Kosmont was retained by Client to provide analysis of public sector project funding sources for a proposed golf course, hotel, and residential project ( "Project ") on Santa Catalina Island. 16. Busan — East Busan Tourist Complex, South Korea Kosmont was retained by the lead investment and development partner for the master planning and design of a 1,400 acres world class destination resort and theme park in Busan, South Korea. The estimated $1.4 billion East Busan Tourist Complex was expected to be a "Health, Healing and Recreation" destination, combining the natural beauty of the Busan coastal area with destination hotel resorts, private ownership of resort real estate, and recreational amenities, including several golf courses, a theme park, a water park, and a marine sports complex. Kosmont's Master Plan was a collaborative effort with Busan City and Korea Land Development Corporation to achieve a major synergistic effect by clustering key facilities within close proximity to each other so that both day users and long -term visitors are attracted to the site. The hotel resort and theme park Master Plan for Busan, South Korea was a detailed development program which incorporated specific site development, architectural layouts, engineering considerations for on -site infrastructure, as well as cost estimates and feasibility studies for each use included within the Project. 17. Ryan Klein — Hollywood Hills Hotel Kosmont conducted development due diligence regarding several sites in Hollywood and West Hollywood areas for prospective development of a luxury hotel. 18. City of Reno — Reno Redevelopment Agency Benefit Analysis Kosmont was retained by the City of Reno to prepare a comprehensive cost/benefit analysis of the Downtown Reno Redevelopment Agency's activities since its foundation in FY 1982/83. The analysis looked at the historic cost of downtown Reno's property tax redistribution to the Agency, compared to the increased economic activity and the resulting hotel, sales and business license taxes generated from the incremental growth that has occurred in the downtown core. The analysis also estimates the future costs and benefits through the remainder of the Agency's original 35 -year term. KOSMONT COMPANIES 865 South Figueroa Street 35 Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com V • • City of Seal Beach Sample Hotel Projects May 16, 2011 Page 5 of 5 19. Fairplex Crossroads — Economic and Fiscal Impact Analysis Kosmont prepared a preliminary analysis of the fiscal and economic benefits to be expected from the Fairplex Crossroads development in Pomona. The proposed project was to be developed by Lewis Operating Corp. and Madison Marquette and was planned for 550,000 square feet of retail /entertainment uses, In addition to a 6,500 -seat special events center ( "Arena ") planned adjacent to the existing Sheraton hotel. Total benefits and costs at full build out were considered with and without the 6,500 -seat Arena for the purposes of estimating the net impact on the city, should the Fairplex Crossroads development go forward. 20. Gateway to L.A., Inc. — Gateway to L.A. (Century Corridor) Management District Service Plan & Property Business Improvement District (PBID) Formation General Electric Capital Corporation and R &B Commercial Management Company, Inc. retained Kosmont to evaluate the "Century Corridor", comprised primarily of hotel properties along Century Boulevard, the gateway to Los Angeles International Airport. Kosmont focused its efforts on ways to revitalize this area to maximize property values and occupancy of the 13 hotels and numerous office buildings in the Corridor. Kosmont formed the Property Business Improvement District (PBID), still in existence today. KOSMONT COMPANIES 865 South Figueroa Street 35 Floor Los Angeles CA 90017 ph 213.417.3300 fx 213.417.3311 www.kosmont.com